Privacy Laws in India

Like everything mankind has ever achieved, there has been a positive and a negative side to it. Technology has invaded every part of our lives whether the invasion was desired or not, we cannot be sure whether what we say has been heard by a third party as well whether that was desired or not. The proverbial Hindi saying of even walls having ears has never rung truer. The principle of the world today can be: whatever you may do, the world will get to know before you realize, ask a certain Tiger Woods about it.

In the earlier times in India, the law would give protection only from physical dangers such as trespass from which the Right to Property emerged to secure his house and cattle. This was considered to be the Right to Life. As the ever changing common law grew to accommodate the problems faced by the people, it was realized that not only was physical security required, but also security of the spiritual self as well as of his feelings, intellect was required. Now the Right to Life has expanded in its scope and comprises the right to be let alone the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession — intangible, as well as tangible.[1]

TYPES OF PRIVACY

The term “privacy” means many things in different contexts. Different people, cultures, and nations have a wide variety of expectations about how much privacy a person is entitled to or what constitutes an invasion of privacy.

Physical

Physical privacy could be defined as preventing “intrusions into one’s physical space or solitude” This would include such concerns as:

preventing intimate acts or one’s body from being seen by others for the purpose of modesty; apart from being dressed this can be achieved by walls, fences, privacy screens, cathedral glass, partitions between urinals, by being far away from others, on a bed by a bed sheet or a blanket, when changing clothes by a towel, etc.; to what extent these measures also prevent acts being heard varies video, as aptly named graphics, or intimate acts, behaviors or body part preventing unwelcome searching of one’s personal possessions preventing unauthorized access to one’s home or vehicle medical privacy, the right to make fundamental medical decisions without governmental coercion or third party review, most widely applied to questions of contraception.

Informational

Data privacy refers to the evolving relationship between technology and the legal right to, or public expectation of privacy in the collection and sharing of data about one’s self. Privacy concerns exist wherever uniquely identifiable data relating to a person or persons are collected and stored, in digital form or otherwise. In some cases these concerns refer to how data is collected, stored, and associated. In other cases the issue is who is given access to information. Other issues include whether an individual has any ownership rights to data about them, and/or the right to view, verify, and challenge that information.

Various types of personal information often come under privacy concerns. For various reasons, individuals may not wish for personal information such as their religion, sexual orientation, political affiliations, or personal activities to be revealed. This may be to avoid discrimination, personal embarrassment, or damage to one’s professional reputation.

Organizational

Government’s agencies, corporations, and other organizations may desire to keep their activities or secrets from being revealed to other organizations or individuals. Such organizations may implement various security practices in order to prevent this. Organizations may seek legal protection for their secrets. For example, a government administration may be able to invoke executive privilege or declares certain information to be classified, or a corporation might attempt to protect trade secrets.

JUDICIAL ACTIVISM AND THE EVOLUTION OF RIGHT TO PRIVACY IN INDIA

The first time this topic was ever raised was in the case of Kharak Singh vs. State of UP[2] where the Supreme Court held that Regulation 236 of UP Police regulation was unconstitutional as it clashed with Article 21 of the Constitution. It was held by the Court that the right to privacy is a part of right to protection of life and personal liberty. Here, the Court had equated privacy to personal liberty.

The question of the right to be let alone again came on the front in the case of R. Rajagopal vs. State of T.N.[3] also known popularly as the Auto Shankar Case. A prisoner had written his autobiography in jail describing the conditions there and the nexus between prisoners and several IAS and IPS officers. He had given the autobiography to his wife so that she may publish it in a particular magazine. However, the publication was restrained in various matters and the question arose whether anyone has the right to be let alone and particularly in jail.

THE ROAD AHEAD FOR PRIVACY LAW AND INDIA

Judges of the American Supreme Court have talked about the right to privacy as an aspect of the pursuit of happiness.[4] The pursuit of happiness requires certain liberties that we are guaranteed by the state so that we may act in a fashion that we may deem fit, as long as it does not encroach upon the rights of others. Liberty is not a limited or quantifiable right. It is visible on the entire gamut of the legal spectrum.[5]

If one looks at the earlier judgments of the apex court in its formative years, one can observe the desirability of the court to treat the Fundamental Rights as water-tight compartments. This was felt the most in the case of A.K Gopalan v. State of Madras[6] and the relaxation of this stringent stand could be felt in the decision of Maneka Gandhi v. Union of India[7]. The right to life was considered not to be the embodiment of a mere animal existence, but the guarantee of full and meaningful life.[8]

Being part of a society often overrides the fact that we are individuals first. Each individual needs his/her private space for whichever activity (assuming here that it shall be legal). The state accordingly gives each individual that right to enjoy those private moments with those whom they want to without the prying eyes of the rest of the world. Clinton Rossiter has said that privacy is a special kind of independence which can be understood as an attempt to secure autonomy in at least a few personal and spiritual concerns. This autonomy is the most special thing that the person can enjoy. He is truly a free man there. This is not a right against the state, but against the world. The individual does not want to share his thoughts with the world and this right will help protect his interests.

In this day and age, this right is becoming more essential as every day passes. With all our lives being splattered over the media be it through social networking sites or the spy cameras, we need protection so that we can function in a way we want to and not think of others before our actions. After all, the only ones we owe an explanation to is ourselves, and not to the entire world.

[1] Supra fn 1

[2] AIR 1963 SC 1295

[3] (1994) 6 SCC 632

[4] Poe vs. Ullman, 367 US 497 at 522

[5] Abhinav Chandrachud, The substantive Right to Privacy: tracing the Doctrinal Shadows of the Indian Constitution, (2006) 3 SCC (J)

[6] AIR 1950 SC 27

[7] AIR 1978 SC 597

[8] Kharak Singh vs. State of UP, AIR 1963 SC 1295

Article by,

Vinayak Mathur

3rd Year, B.A. LL.B. (Hons.)

Dr. Ram Manohar Lohiya National Law University,

Lucknow

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

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